June 15, 1998

Tobacco and the American Civil Liberties Union

Morton Mintz’s latest diatribe against the ACLU only serves to degrade and debase the standards of your magazine, whose stated purpose is “to promote and elevate the standards of journalism.”

As the following examples demonstrate, Mintz is not interested in revealing the truth but rather in distorting the truth in order to rally people to his anti-smoking crusade.

Mintz begins by asserting that my response to his continuing demands for information which we had already given him was “crafted to read like” a threat to sue for libel; he even refers to himself as “the putative defendant.”For someone who purports to be familiar with ACLU policies, Mintz ought to know that the ACLU opposes the very notion of libel suits as an available remedy for false speech, and that I was the principal author of that policy.

Mintz says that this latest attack is inspired by a book by John Fahs, a former clerical employee who left the ACLU several years ago. The book, “Cigarette Confidential,” includes a chapter about the American Civil Liberties Union’s alleged “relationship” with the tobacco industry. But as Mintz well knows, there is nothing new in John Fahs’s book, nothing that has not been looked at before and answered by us—and by Mintz himself—publicly.In his book, Fahs charges that the ACLU has accepted contributions from Philip Morris and R.J. Reynolds on a “quid pro quo” basis, that is, in return for the ACLU changing its policies to conform to those of the tobacco industry. This allegation is false: there is not a single truthful example to support this charge.

Mintz is correct in stating that Fahs’s book was “all but ignored by the media and reviewed nowhere.” But he is wrong in claiming that the author’s press stunt “flopped” because ACLU media spokespeople “chilled” the story. Mintz doesn’t exhibit much respect for his fellow journalists if he thinks a word from the ACLU can kill a hot story.

Mintz also has John Fahs defending himself against charges that he stole documents from the ACLU: “I didn’t steal any documents or letters,” Fahs says, “I did make Xerox copies of files that I had daily access to through my work in the ACLU’s Media Relations office.”The fact is, the documents Fahs copied came from the Workplace Rights Project, files he had “access” to only because that department was located on the same floor as Media Relations, not because he was authorized to rifle through those files after business hours.

Mintz further strains credulity by repeating Fahs’s assertion that the ACLU was “a driving force in the push to add a Smokers Rights Amendment to the United States Constitution.”This assertion is absolutely without merit and I challenge Mintz to show me any proof whatsoever that the ACLU ever supported such an amendment—or even that such an amendment exists. I myself had never heard of this proposed amendment until I read about it in Fahs’s book.

Mintz continues to assert that the ACLU kept secret grants from tobacco companies. They were not secret. Our Board of Directors knew about them, our local affiliates were informed about them, and we responded openly and candidly to anyone who asked, including reporters. News stories about this appeared in national publications back in 1989. How is that a secret?

Mintz also quotes from statements by Joseph Cherner in a newsletter called SmokeFree Air about “contrasting positions on tobacco taken by the ACLU before and after it began to solicit and accept industry money.”As Mintz well knows, based on hours of interviews with myself and other leading ACLU officials and documents that we showed him, our positions on these issues (many of which Cherner wrongly described in the newsletter) have not changed since those contributions were received. For instance, the newsletter claims (and Mintz repeats) that the ACLU “opposes legislation requiring smoke-free workplaces and public places.” Not true. We have not opposed such legislation, we have repeatedly said so publicly, and in fact we forbid smoking in our own offices. At the time Mintz published this charge in Nieman Reports, he had to know it wasn’t true because we previously demonstrated it to him.Another example: the newsletter claims that before receiving contributions from tobacco companies, we “did not oppose banning cigarette advertising on TV and radio.” Wrong. We have always opposed bans on commercial advertising of any legal product, on First Amendment grounds. We have taken that position consistently for more than 50 years in policy statements, in litigation and in legislative memoranda, and not only for tobacco. All this is a matter of public record.

Mintz continues to imply that the ACLU solicited and received huge grants totaling more than a million dollars from Philip Morris and RJR Nabisco. In fact, we received grants from these companies in much smaller annual amounts over a period of 10 years—never more than one-half of 1 percent of our revenues in any one year.

Contrary to what Mintz asserts, none of the support we received from companies whose products include tobacco was for issues directly related to those companies’ interests—like the right to advertise or the rights of people to smoke in public places. The support was for things like an opinion poll we conducted to determine the public’s views on various aspects of privacy and personal autonomy—issues like reproductive freedom, drug decriminalization, sexual privacy, informational privacy, etc. We have also received support for a public education program on the rights of people in their workplaces—issues like lie detector tests, genetic screening, indiscriminate urine testing, punishments for off-the-job conduct and lifestyle, etc. We also got a small grant to assist our public education work on AIDS. All of this work involved our agenda, not Philip Morris’s; all of it involves issues and policies we have long advocated. It is difficult to imagine why anyone would want us not to solicit support for such work from anyone willing to provide it, without strings.

Mintz also quotes from a statement by Mel Wulf, a former Legal Director of the ACLU, to support his false claim that we have supported the right of smokers to smoke in public places and threaten the health of others. He cites no example to support his claim because there is none. Wulf has not worked for the ACLU for more than 20 years, and not once during that time has he called me—even though we know each other well—to inquire about our position on this issue. Despite that, he publicly misstates it, utilizing his former position with us to give his statement credibility. But the facts are to the contrary. I am happy to state once again as I have many times before that the ACLU has never opposed restrictions on smoking in the workplace and in other public places, and we have never even considered changing that position. In fact, as I mentioned, we have strict rules in our own offices, and as a lifelong non-smoker I’m glad of it.

We do oppose laws that ban commercial advertising, but although this position benefits tobacco companies who wish to advertise, it also benefits abortion clinics and lawyers against those who want to ban their advertising. Our position that the First Amendment provides some degree of protection for commercial advertisers existed for decades before we solicited grants from these companies and is a generic position applying to many kinds of advertising.

Finally, Fahs’s book notwithstanding, readers should know that the whole question of the ACLU and “tobacco money” was raised and put to rest some years ago in a report issued by Mintz himself. His report was generally critical of the ACLU’s willingness to accept contributions from tobacco companies. Nonetheless, in a news conference at the National Press Club in Washington, he concluded that there was “no trace” of any “financial impropriety” in the ACLU’s solicitation and use of these grants, that “integrity is not the issue,” and that “the ACLU rigorously segregates fundraising from its efforts in behalf of civil liberties.”

Mintz’s refutation of his own conclusions based on documents “revealed” in John Fahs’s book does not hold up, because those documents do not hold up.

It is regrettable, to say the least, that Mintz is using his once-sterling reputation as a journalist in a misguided attempt to lend credibility to his crusade. While I can respect his dedication to a cause, I cannot respect his methods. He has done a disservice to the ACLU and to journalism as well.

from Nieman Reports

from Nieman Reports

The man who is the ACLU, in the eyes of many, is throwing stones from his glass house. The stones, riven by deceptions, crumble into dust.

On the ACLU and tobacco money, “Mintz gave up any pretense to objective, fact-based reporting long ago…in order to rally people to his anti-smoking crusade.” Reporting on tobacco—one of the most important stories of our era—is not crusading. My article was reporting. It was not I but Melvin Wulf, a long-time former ACLU legal director, who declared that John Fahs’s revelations in “Cigarette Confidential” threaten the ACLU’s “basic integrity.” It was Ramona Ripston, Executive Director of the ACLU’s Southern California affiliate, who likened “the internal conflict of interest in accepting money from cigarette companies and then aggressively advocating on their behalf” to the ACLU hypothetically taking money from a marketer of harmful children’s toys while defending its “right to publicize the products.”

“Mintz continues to assert that the ACLU kept secret grants from tobacco companies.” False. I criticized the Union’s conflict of interest in “failing to mention” in communications to its membership that it was seeking and accepting big bucks from Philip Morris (PM) and R.J. Reynolds (RJR) while lobbying alongside them against legislation to ban tobacco advertising. “Secret” and “failing to mention,” like “crusade” and “report,” are not interchangeable.

“Our board…knew about the grants.” Ira Glasser admitted he hadn’t consulted the board before soliciting PM’s initial grant in 1987. He said the RJR money—he wouldn’t reveal the amount—was for “a public opinion poll on personal autonomy issues.” This was misleading. In 1991, for example, the ACLU’s North Carolina affiliate told Glasser that without RJR’s “additional support” it “will end up $30K in the red this year….”

“[T]he whole question of the ACLU and ‘tobacco money’ was…put to rest…by Mintz himself” in my 1993 report. False. “Allies: The ACLU and the Tobacco Industry” did say that PM’s grants—totaling $500,000 from 1987 to 1992, and constituting less than one-half of 1 percent of annual revenues—created no financial impropriety. But I hadn’t known this crucial fact: PM and RJR had earmarked their grants for the ACLU’s National Task Force on Civil Liberties in the Workplace. My wake-up call was the memo in “Cigarette Confidential” in which task force director Lewis Maltby told Glasser: “Philip Morris provides no general contributions to the ACLU, only earmarked money for workplace rights.”

[“N]othing in John Fahs’s book…has not been…answered…by Mintz himself—publicly.” False. Not until I read the book in 1997 did I learn of critical facts that I wrote about in NR. Examples from Maltby memos:“[T]he only interest these people [PM] have in the ACLU is our role in fighting lifestyle discrimination;” the ACLU commissioned and requested PM to pay $11,000 for an Oklahoma poll of “public attitudes toward employer policies regulating employees’ off-duty conduct;” a PM official “called me to discuss the possibility of increasing the ACLU’s involvement with defending commercial speech. Their view is that…a great deal more could be done at the state and local level…. PM would be willing to provide funding for such a program…. They provided the funding for our Mississippi affiliate’s recent conference on free speech.”

“[N]one of [PM’s and RJR’s] support…was for issues directly related to their interests—like the right to advertise or the rights of people to smoke in public places [emphasis added].” Glasser’s implication is that the companies contributed to the ACLU out of dedication to civil liberties; they were ungrateful to the ACLU for lobbying alongside them against curbs on tobacco speech; and “lifestyle discrimination,” “employees’ off-duty conduct,” and “commercial speech” don’t affect cigarette sales, even indirectly.Maltby’s memos buttress this statement by Melvin Wulf: “The justification that the money is used to support workplace rights is a sham. There is no constitutional right to pollute the atmosphere and threaten the health of others.” Glasser translates this into a “false charge” that the ACLU “supported the right of smokers to smoke in public places and threaten the health of others.” In fact, Wulf was reacting to Maltby’s attempts—revealed in many ACLU documents—to have the Union oppose limitations on smoking in public places; Wulf neither said nor implied that the ACLU succumbed to the attempts.

“Mintz continues to imply that the ACLU solicited and received…more than a million dollars from [PM and RJR].” Misleading: I wrote: “according to Fahs, the Union and/or its tax-exempt ACLU Foundation had taken more than $900,000 in tobacco money. ACLU affiliates had taken hundreds of thousands of dollars more [emphasis added].”

“Mintz further strains credulity by repeating Fahs’s assertion that the ACLU was ‘a driving force in the push to add a Smokers Rights Amendment to the…Constitution.’” False. Fahs wrote that “Maltby has become the driving force…”

The ACLU documents in Fahs’s book “do not hold up.” Having said that Fahs obtained the documents from Maltby’s task force files, Glasser has authenticated them.

Glasser denigrates Fahs’s ACLU chapter by saying that although the author circulated copies to reporters, no stories appeared. The press misses important stories every day. The ACLU called Fahs “a disgruntled employee…fired for incompetence.” I said this “may have chilled” coverage; Glasser disagrees. You choose. (Fahs “resigned,” the ACLU admitted later.)

Fahs’s book “was not reviewed because it is not worth reviewing.” Many worthy books aren’t reviewed.

On one issue I stand corrected. In a 1996 letter to Glasser, smoking foe Joseph Cherner listed “contrasting positions on tobacco taken by the ACLU before and after it began to solicit and accept industry money.” Cherner asked Glasser whether he’d “accurately reflected” his positions. Getting no response, Cherner assumed he was correct in saying that only after 1987 did the ACLU begin to oppose legislation banning smoking in workplaces and public places. His assumption was erroneous. I recycled it, forgetting Glasser’s 1992 assurance that the ACLU didn’t oppose such legislation. I regret this.

Cherner also charged that before starting to take tobacco money, the ACLU “did not oppose banning cigarette advertising” on the air. Glasser replies, “We have always opposed bans on advertising of any legal product.” Michael Pertschuk, a leader of the fight to legislate the airwaves cigarette ad ban, doesn’t recall the ACLU opposing it. Wulf says flatly that it didn’t join “the litigation [upholding the ban] against constitutional challenge.”

The Fahs/Glasser disagreement over whether the ACLU had a quid pro quo arrangement with PM and RJR illuminates its modus operandi. I sent president Nadine Strossen bona fide requests to respond to my queries—and thus abort possible errors (Fahs’s, Wulf’s, Cherner’s, mine). She deferred to Glasser. He imposed prior restraint. Why? Embedded in my queries were “false and misleading” charges. Such as? He didn’t say. Why? I lack integrity. Evidenced by? I told him in 1992 that I was writing a magazine piece. I believed I was. I tried for months to sell it. Finally, a non-paying ad hoc coalition of tobacco foes took the article off the shelf and published it as “Allies.” “[Y]our interview was…for a report, commissioned by an organization apparently not very interested in objective reporting,” he wrote me. No one “commissioned” anything.

Glasser obscures core issues. One is an ACLU “fundamental position,” expressed this way by Maltby: “[E]ach of us has a right to personal autonomy which entitles us to live as we choose so long as we do not infringe the rights of others.” Glasser’s ACLU violates this principle. It tilts toward smokers and away from nonsmokers. Yet, Maltby said, it hasn’t “thought through,” and has “no answers” to, “essential questions” about the health hazards of second-hand smoke. This chronology illustrates the tilt:

1993: A smokers’ organization funded by cigarette makers alerted smoker-members protected by “privacy” laws that the ACLU “wants to come to your defense,” without fee, if, say, ads saying smokers needn’t apply deterred them from seeking jobs. The ACLU made no comparable offer to nonsmokers. Nor did it affirmatively support smoke-free air legislation.

1994: A whistleblower sent 4,000 pages of secret Brown & Williamson internal documents to Stanton Glantz, professor of medicine at the University of California, San Francisco. The University put them on the Internet. B&W threatened to sue. This had major First Amendment implications. Glantz asked the ACLU to file a friend-of-the-court brief. “They said they were too busy,” he says.

1998: “We forbid smoking in our own offices,” Glasser says. He imposed the prohibition only after demands by employees. Glasser warned me not to recycle my queries in an article, saying, “we will appropriately respond at that time.” I said this was language crafted to be read as a “bizarre” implicit threat to sue for libel. Mintz “even refers to himself as ‘the putative defendant,’” Glasser now says. Here’s what I wrote: “Nor did [Glasser] identify the putative defendant. Me? Not necessarily.”

Having lost my “last shred of credibility as a reporter,” I may be ill-suited to suggest that the ACLU board could still repair a reputation earned over a long and often glorious history. It could open all ACLU records relating to tobacco. It could repudiate tobacco money, as has the Southern California affiliate. Finally, it could throw a party, honor the executive director for his contributions and confiscate his stones.